Delay can be fatal to your case

An interesting decision was handed down by Mr. Justice Barrett on the 28^th February 2016 recently which dealt with the issue of delay. In the case of Ann Vernon versus AIBP Limited, the Plaintiff had sued the Defendant for personal injuries when she claims that she was involved in an accident on or about the 14^th December, 1999. Proceedings issued in November, 2001 and the Statement of Claim was delivered in February, 2002. The Defence was filed by the Defendant on the 16^th October, 2002 and very little appears to have been done since then.

The Plaintiff did suffer from ill health between 2004 and 2012 and had a variety of personal and family misfortunes. She lost contact with her Solicitors as she moved address and didn’t give her new address to her Solicitors and they were unable to contact her.

Mr. Justice Barrett had examined the Law in relation to this and in particular examined the Supreme Court decision in Primor versus Stokes Kennedy Crowley, a 1996 decision.  Mr. Justice Hamilton in the Primor decision noted the three stage test, which was to be applied in cases delay.  The first question was the delay inordinate? The second question was it inexcusable? And the third question was that even if it were inordinate and inexcusable, was the balance of Justice in favour of the proceeding of the case.

When Mr. Justice Barrett applied the test to this case, he felt that the delay was inordinate but he felt that given the particular circumstances that the Plaintiff’s delay was excusable.

He also endorsed Mr. Justice Henchey’s comments in the case of O’Domhnail v Merrick in which he said that the Court needed to strike a balance between the Plaintiff’s need to carry on their delayed claim against the Defendant, and the Defendant’s basic right not to be subjected to a claim which they might not be able to defend.  In this case he allowed the case to continue.

Counsel on behalf of the Plaintiff raised an interesting claim urging the Court to have particular regard to Ms. Vernon’s socio-economic background as well as certain personal and family misfortunes that she had suffered.  The Court did not comment on the question of whether a less vigorous standard of what is inexcusable should apply to somebody who is perhaps deprived as opposed to those who hail from a more advantaged environment.

A lot of the difficulties stem from the Plaintiff failing to contact the Solicitors and thus contact being cut off, and the rule of thumb as always is when you are involved in litigation, keep in regular contact with your Solicitors and have them keep in contact with you!